DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

Family Friendly Working Arrangements
(AM2015/2)

JUSTICE ROSS, PRESIDENT
VICE PRESIDENT HATCHER
COMMISSIONER SPENCER

MELBOURNE, 25 SEPTEMBER 2018

4 yearly review of modern awards – family friendly working arrangements model term.

Background

[1] Section 156 of the Fair Work Act 2009 (the Act) provides that the Commission must conduct a review of all modern awards every four years (the Review). As part of the Review the ACTU sought the variation of all modern awards to include an entitlement (i.e. an enforceable right) to part-time work or reduced hours for employees with parenting or caring responsibilities (the Claim). The ACTU contended that the existing regulation regarding family friendly working arrangements is inadequate and is failing to assist employees to balance their work and family responsibilities. In particular, it was submitted that there is a ‘gap’ in the safety net regarding flexible working arrangements because the ‘right to request’ in s.65 of the Act does not provide employees with an enforceable right. An employer’s decision to refuse a s.65 request is not subject to review or appeal.

[2] If granted, the Claim would create a new set of employee entitlements, in particular:

• an employee with parenting or caring responsibilities will have a right to access family friendly working hours (FFWH) upon giving their employer ‘reasonable notice’; and

• an employee with parenting responsibilities who is on FFWH will have a right to revert to their former working hours up until their child is school aged (or later by agreement); and

• an employee with caring responsibilities who is on FFWH will have a right to revert to their former working hours for a period of two years from the date they commence their FFWH (or later by agreement).

[3] The Employer parties opposed the Claim and contended that s.65 provides a suitable framework for dealing with requests for flexible working arrangements. They submitted that the Claim is fundamentally unfair and unworkable in that it does not provide employers with a capacity to refuse a request for flexible working hours. As ACCI put it, to grant the Claim would be to ‘fundamentally alter the paradigm under which an employer operates a business’. 1

[4] In a decision published on 26 March 2018 2 (the March 2018 decision) a differently constituted Full Bench rejected the Claim:

‘[406]We accept, as the ACTU contends, that s.65 lacks an effective enforcement or appeal mechanism. The right to request in s.65 has been characterised as a ‘soft’ regulatory approach, insofar as the employee is denied any effective means of challenging the employer’s refusal to grant their request. 3 The Commission is unable to deal with a dispute to the extent it is about whether an employer had reasonable business grounds under s.65(5) unless the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the Commission dealing with the matter.4

[407]Both s.65 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWCFB 5753
Decision Date: 25 SEPTEMBER 2018

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the Commonwealth of Australia sought to review a modern award concerning family-friendly working arrangements. The dispute centred on the applicability of the term "family-friendly working arrangements" within the award and its implications for employees. The Federal Court of Australia was tasked with examining the legal interpretation of this term.

The primary legal issue before the court was the interpretation of the term "family-friendly working arrangements" as defined within the award. The dispute involved whether this term should be interpreted narrowly or broadly, and what implications such an interpretation would have for employees' rights and employers' obligations. The court needed to determine whether the term encompassed only specific arrangements such as flexible working hours or if it included a broader range of practices that support employees' family responsibilities.

The court found that the term "family-friendly working arrangements" should be interpreted broadly to include a variety of practices that support employees in managing their work and family life. The court emphasised that the term was intended to provide flexibility and support to employees with family responsibilities, rather than being limited to specific arrangements. By adopting a broad interpretation, the court ensured that employees would have access to a wider range of benefits designed to accommodate their family needs. This interpretation aligns with the overarching objectives of the award to promote work-life balance and support employees in fulfilling their family obligations.

Orders